McCue v Scottish Daily Record & Sunday Mail Ltd (No.2)
| Jurisdiction | Scotland |
| Judgment Date | 05 June 1998 |
| Docket Number | No 75 |
| Date | 05 June 1998 |
| Court | Court of Session (Inner House) |
FULL BENCH
Lord Justice-Clerk (Cullen), Lord McCluskey, Lord Caplan, Lord MacLean and Lord Wylie
PracticeInterlocutorInterlocutor ordaining pursuer to find cautionLeave to reclaim refusedCaution not lodgedDecree of absolvitorReclaiming motion against decree of absolvitorWhether interlocutor ordaining pursuer to find caution a final interlocutorWhether competent to bring interlocutor ordaining pursuer to find caution under review in reclaiming motion against decree of absolvitorRules of the Court of Session 1994, r 38.81
A pursuer brought an action of reparation for damages in respect of an alleged defamation of him in a newspaper. The pursuer was a party litigant. He was ordained to find caution for expenses. He was also refused leave to reclaim against that interlocutor. Despite several prorogations of time within which to lodge caution being granted, the pursuer failed to lodge caution and the Lord Ordinary thereafter refused a further motion for prorogation. The defenders were granted decree of absolvitor. The pursuer reclaimed against the interlocutor granting decree of absolvitor and sought review of the interlocutor ordaining him to find caution. The defenders objected to the competency of the reclaiming motion.
Held (1) that the general intention of sec 52 of the Court of Session Act 1868 and the successive rules which were derived from it was to enable the court, when entertaining a competent reclaiming note or motion, to review prior interlocutors which had not been previously reclaimed against and any restriction on that power had to be found in another provision which conferred an immunity from the review, expressly or by necessary implication; (2) that it was important to distinguish between a rule which excluded subsequent review of a prior interlocutor which was not reclaimed within the period allowed and a provision which merely delimited the period for reclaiming, which could not be treated as excluding a subsequent review without eliminating the scope for r 38.8(1) of the Rules of the Court of Session 1994;(3) that, as there was a competent reclaiming motion by the pursuer, the actings of parties consequent on a prior interlocutor could not effectively disable the court from reviewing that interlocutor, although such actings could lead the court to the conclusion that the prior interlocutor ought not to be interfered with; (4) that, r 38.5(6) of the 1994 Rules was to be understood as excluding the review of a decision to grant or refuse leave to reclaim, but it did not follow that the interlocutor sought to be reclaimed was to be excluded from subsequent review, in particular following final judgment, the underlying purpose of the rule being to avoid delay and disruption which a challenge to the decision as to leave entailed, its purpose being achievable without the further consequence of rendering final the interlocutor against which it was sought to reclaim; and (5) that although the Lord Ordinary had refused leave to reclaim against the interlocutor ordaining the pursuer to find caution, it did not follow that it was incompetent for the court to review the interlocutor ordering caution when considering a reclaiming motion against absolvitor following a failure to find caution; and orderpronounced that reclaiming motion competent.
Marsh v BaxendaleSC1994 SC 157 and Mowbray v D C Thomson LtdSC1996 SC 157overruled.
John McCue brought an action of reparation for damages against (first) the Scottish Daily Record and Sunday Mail Limited and (second) Norman Silvester in respect of an alleged defamatory article published in the Sunday Mail newspaper dated 9 July 1995.
On 10 September 1995 the pursuer was ordained to find caution for expenses in the sum of 15,000 within a period of three weeks. The pursuer sought leave to reclaim against that interlocutor, which motion was refused by the Lord Ordinary on 23 September 1995.
Time for finding of caution by the pursuer was prorogated on a number of occasions.
At advising, on 14 November 1995, the Lord Ordinary refused a further motion on the pursuer's behalf for a further prorogation of time and, in respect of the failure to lodge caution, assoilzied the defenders.
The pursuer reclaimed.
The defenders objected to the competency of the reclaiming motion.
Cases referred to:
Boss v Lyle Shipping Co Ltd 1980 SLT (Sh Ct) 65
Campbell v James Walker Insulation Ltd 1988 SLT 263
Clarke v MullerUNK (1884) 11 R 418
Copeland v Lord WinborneENR 1912 SC 355
Cumpstie v WaterstonSC 1933 SC 1
Ferguson's Trustee v ReidSC 1931 SC 714
Macaskill v NicolSC 1943 SC 17
McGuinness v Bremner plc 1988 SLT 340
Marsh v BaxendaleSC 1994 SC 157
Mowbray v D C Thomson LtdSC 1996 SC 157
Newcastle Building Society v White 1987 SLT (Sh Ct) 81
North British Railway Co v GleddenUNK (1872) 10 Macph 870
Scott v RoyUNK (1886) 13 R 1173
Spencer v Macmillan 1957 SLT (Notes) 32
Stevenson v Midlothian District CouncilSC 1983 SC (HL) 50
Thom v AndrewUNK (1888) 15 R 780
Watson v RussellUNK (1894) 21 R 433
Winning v Napier, Son & Co LtdSC 1963 SC 293
Young's Executors v PeeblesSC 1997 SC 309
Textbooks referred to:
Mackay, Manual of Practice (1893), p 304
Mackay, Practice of the Court of Session (1879) i, 572573
Maclaren, Court of Session Practice, p 947
The cause called before the Inner House who remitted the cause to a Court of Five Judges.
The cause thereafter called before a Court of Five Judges comprising the Lord Justice-Clerk (Cullen), Lord McCluskey, Lord Caplan, Lord MacLean and Lord Wylie for a hearing on the summar roll.
At advising, on 5 June 1998, the opinion of the court was delivered by the Lord Justice-Clerk (Cullen).
Opinion of the CourtIn this action the pursuer sues the defender for damages in respect of their alleged defamation of him in the issue of the Sunday Mail newspaper of 9 July 1995. The pursuer is a party litigant. The record was closed on 6 August 1997. On 10 September the pursuer was ordained to find caution for expenses in the sum of 15,000 within a period of three weeks. On 23 September the pursuer's motion for leave to reclaim against that interlocutor was refused. Thereafter the time for the finding of caution by the pursuer was prorogated on a number of occasions. However, on 14 November the Lord Ordinary refused the pursuer's motion for a further prorogation, and in respect of his failure to lodge caution assoilzied the defenders from the conclusions of the summons. The pursuer has reclaimed against the latter interlocutor which plainly, in the langauge of Rule of Court 38.3(2) was an interlocutor disposingof the whole subject-matter of the cause.
In his reclaiming motion the pursuer contends, firstly, that he is entitled to seek the review of the interlocutor dated 10 September 1997 by which he was ordained to find caution; and, secondly, that it was not appropriate for him to be so ordained. This opinion is directed to the first of these contentions. The case was remitted to this court of five judges because the pursuer's contention involved the possible reconsideration of a number of previous decisions. During the discussion the court heard submissions by counsel who at the request of the court had been appointed by the Lord Advocate to be amicus curiae;and by the solicitor-advocate for the defenders. We should like to record the court's appreciation of the significant assistance which they gave. The pursuer himself did not add any submission to the court.
The competing contentions of the parties can be put shortly as follows. The pursuer relies on the terms of Rule of Court 38.8(1) which provides, subject to a qualification which is not relevant for present purposes, as follows:A reclaiming motion shall have the effect of submitting to the review of the Inner House all previous interlocutors of the Lord Ordinary, not only at the instance of the party reclaiming, but also at the instance of any other party who appeared in the cause, and without necessity of any counter-reclaiming motion. The defenders' opposition to the use of this rule is based on the fact that the pursuer was refused leave to reclaim against the interlocutor dated 10 September 1997, and that Rule of Court 38.5(6) provides that the decision of the Lord Ordinary to grant or refuse leave to reclaim shall be final and not subject to review.
At this stage it is convenient to set out a brief history of the conditions under which an interlocutor may be reclaimed.
The Court of Session Act 1868 regulated the extent to which it was competent for a party to reclaim pending final judgment in the Outer House. In this context the word final referred to the disposal of the subject-matter of the cause. For this purpose sec 53 of the Act stated:It shall be held that the whole cause has been decided in the Outer House when an interlocutor has been pronounced by the Lord Ordinary, which, either by itself, or taken along with a previous interlocutor or interlocutors, disposes of the whole subject-matter of the cause, or of the competition between the parties in a process of competition, although judgment shall not have been pronounced upon all questions of the law or fact raised in the cause.
Firstly, sec 28 stated, in brief, that certain interlocutors which settled the mode of proof were to be final unless reclaimed within six days of their date. The leave of the Lord Ordinary was not required for reclaiming such interlocutors. In this context the word final related to the review of such interlocutors. Secondly, sec 54 of the Act stated that, except in so far as otherwise provided by sec 28, until the whole cause had been decided in the Outer House, it was not competent to reclaim without the leave of the Lord Ordinary.
By sec 14(2) of the Administration of Justice (Scotland) Act 1933 it was provided:Any enactment in force at the commencement of this Act precluding the presentation of a reclaiming note against an interlocutor...
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